Hobby Lobby decision: 5 takeaways

The Supreme Court waited until the very end to deliver its most hotly anticipated decision of the term: declaring in a 5-4 ruling that for-profit companies can use religious objections to avoid paying for contraception coverage required under Obamacare.

The sharply divided result in Burwell v. Hobby Lobby immediately touched off a wave of analysis and speculation about how large a hole the court put in the side of President Barack Obama’s signature health care law — just two years after Chief Justice John Roberts sided with liberals to save the measure’s individual mandate from legal oblivion.

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This time, Justice Samuel Alito marshaled all the court’s Republican appointees to rule for the devout employers, while Justice Ruth Bader Ginsburg led the liberals in a spirited dissent.

The ruling opened up new questions about how the court will treat questions of religion, reaffirmed the role of the panel’s swing justice and shed new light on the thinking of two liberal justices.

In the lead-up to the decision, Obamacare supporters painted a grim picture of the fallout if employers claiming religious objections were allowed to opt out of the contraceptive coverage requirement. That picture didn’t change much after Monday’s ruling.

“This is not a narrow opinion,” declared Ian Milheiser of the liberal Center for American Progress. “This reverses fundamental assumptions of religious liberty law.”

In her dissent, Ginsburg lays out a variety of procedures and drugs that could go uncovered if religious employers have their way: “blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews and Hindus); and vaccinations (Christian Scientists, among others.).”

Ginsburg’s dissent blasts the majority opinion for its “startling breadth,” as she warns that companies “can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”

Alito dismissed that as wild speculation, saying the government presented “no evidence that insurance plans in existence prior to the enactment of ACA excluded coverage” for items like transfusions or anesthesia. In fact, he said, there was no indication that “any significant number of employers sought exemption, on religious grounds, from any of ACA’s coverage requirements other than the contraceptive mandate.”

Many Democratic and liberal groups quickly echoed Ginsburg’s view, warning that Alito’s opinion “opens the door” to a wide variety of efforts to escape Obamacare’s requirements and those in other laws.”

However, several prominent liberal scholars suggested that view is off the mark — and probably bad strategy to boot.

“I think the decision is much more limited than Justice Ginsburg suggests,” said Harvard law professor Laurence Tribe, noting the majority’s suggestion that the government could simply pay for contraception coverage if employers do not wish to. “The option of having the government pay is clearly not going to be available in a lot of other cases involving discrimination or compulsory vaccinations. … I think it’s premature to say they’re marching off a cliff.”

Georgia State University law professor Eric Segall agreed. “I am not an Alito fan, but he went out of his way to write a narrow opinion,” he said. “Besides, what will decide the case the next time this issue gets to the Supreme Court is who’s on the Supreme Court.”

Tribe also warned it was unwise to paint Alito’s opinion as sweeping — because it might make it seem more so. “Often the dissent claims the sky is falling, and it becomes a self-fulfilling prophesy for the other side and something the dissent tries to run away from in the future,” the Harvard professor said.

GAY RIGHTS ON THE DOCKET?

What’s first, however, could be collisions between religious beliefs and the rights of gays and lesbians. It seems likely some employers will refuse on religious grounds to offer health coverage and other benefits to same-sex spouses, prompting questions under federal employment law.

Alito tried to slam the door on questions about discrimination, but his majority opinion doesn’t squarely address the question of treating people differently based on sexual orientation.

“The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction,” he wrote. “Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”

The White House has been delaying an executive order Obama is planning to ban discrimination against gays and lesbians who work for federal contractors. Lawyers wanted to see if the Hobby Lobby ruling might let companies try to opt out of such an order. (Obama also said publicly Monday that the administration is preparing another order banning discrimination against federal employees based on gender identity.)

But gay rights advocates said they saw nothing in the decision to justify holding up the directive aimed at contractors.

“Nothing in the decision impacts the executive order. In fact, the court explicitly said the decision provides no shield to discrimination in hiring cloaked as religious practice,” said Fred Sainz of the Human Rights Campaign. “The president should issue it without any further religious exemption.”